Partly allowed

Shekara @ Ravikumara v. State by Psi

Karnataka HC10 Feb 2023CRL.RP/679/2014

Case brief

AI extract

What is this about?

In Criminal Revision Petition, the High Court rejected petitioner's challenge to conviction and sentence for robbery. The court found the trial court's findings free from perversity. While confirming conviction, the High Court reduced rigorous imprisonment to one year as leniency for age and lapse of time.

What did the court decide?

Conviction confirmed; sentence of rigorous imprisonment reduced to one year with set-off; fine and default sentence maintained.

Shekara @ Ravikumara Vs State by Psi — Karnataka HC (2023) — LawSathi Research

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL REVISION PETITION NO.679 OF 2014

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BETWEEN:

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SHEKARA @ RAVIKUMARA S/O KALLASWAMY, AGED 28 YEARS, MASON WORK, R/O BHANARAHALLI VILLAGE, BHADRAVATHI TALUK, SHIVMOGGA DIST-577 201.

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...PETITIONER

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(BY SRI. PRASAD B.S., ADVOCATE)

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AND:

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STATE BY PSI NEW TOWN POLICE STATION, BHADRAVATHI, SHIVMOGGA DIST-577 201.

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...RESPONDENT

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(BY SRI. K. NAGESHWARAPPA, HCGP)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE JUDGEMENT AND ORDER DATED 01.01.2013 PASSED BY THE CIVIL JUDGE AND ADDL.

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JMFC, BHADRAVATHI IN C.C.NO.4157/2010 AND ALSO SET ASIDE THE JUDGMENT AND ORDER DATED 06.08.2014 PASSED BY THE P.O., FAST TRACK COURT, BHADRAVATHI IN CRL.A. NO.11/2013, IN THE INTEREST OF JUSTICE.

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THIS CRL.RP HAVING BEEN HEARD AND RESERVED FOR ORDER ON 27.01.2023, POSTED FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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The Revision Petitioner being accused No.1 before the learned Civil Judge and Addl. JMFC, Bhadravathi in C.C. NO.4157/2010, being aggrieved by the Judgment of his conviction and sentence dated 01.01.2013 passed in the said criminal case for the offence punishable under Section 392 read with Section 34 of IPC, sentencing him to undergo Rigorous Imprisonment for two years and pay fine of Rs.2,000/- with default sentence and this Judgment of conviction and sentence being affirmed by the learned Fast Track Court, Bhadravathi in Crl.A. No.11/2013 by Judgment dated 06.08.2014, has preferred this Revision petition.

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The said criminal case was registered based upon the charge-sheet being filed by the New Town Police Station, Bhadravathi, based upon a complaint filed by the complainant by name Smt. Indira Murthy, wife of L. Ramamurthy, at 9.45 p.m. on 11.08.2010 alleging that, she is the resident of the address so stated in the complaint. Her husband is a retired person from VISL and was suffering from pain in his hands. Therefore, on 11.10.2010, herself and her husband had been to VISL Hospital Colony and were returning to their house at 6.30 p.m. by walk on the pathway situated behind New Colony, Karimaremma Temple. By the side of the said pathway, shrubs were grown. Her husband was moving ahead and complainant was following him. At that time, two persons were found on the said pathway and one person was found parked a cement colour scooter and was standing there and when her husband went ahead, other person came to the complainant, threatened her, put his hand on her neck. She fell down. She gave the chain worn by her in neck valuing about Rs.40,000/-. It was containing black beeds (karimani) and it is a golden wedlock chain containing one havala. The said gold ornament was of 'V' shape.

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The said persons were well built and one person was wearing black 'T' shirt and one person was wearing jeans pant. Her husband chased the said person who snatched the chain. But the said person leaving the chappals and scooter, ran away. Complainant was afraid. Thereafter, went to her house and at 9.45 p.m. went to the New Town Police Station and lodged the complaint before P.W.8 - Shivanna, the then Head Constable of New Town Police Station.

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This P.W.8 on receipt of the complaint, registered the same in Crime No.121/2010, prepared the F.I.R. as per Ex.P8 and set the criminal law in motion.

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P.W. 7 - Yogeshwarappa, being the Head Constable of the

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said Police Station, along with his other police staff were deputed for tracing the accused persons. Accordingly on 16.08.2010, P.W. 8 and C.W. 10 to 12 were doing day patrolling duty at various places from 8.a.m. onwards. At 10.00 a.m., when they went to Bhandarahalli and were watching near the Masjid, at that time, two persons were found standing near a shop. On seeing the police, they tried to run away from the said place.

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But P.W.7 and his staff chased them and caught hold them. By apprehending them, produced both accused persons at 10.45 a.m. before P.W.9 - H.S. Raju, the then Sub-Inspector of New Town Police Station.

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This P.W.9 after production of accused before him, arrested them, recorded their voluntary statement as per Exs.P10 and P11. During the course of their voluntary statement, both the accused confessed about crime at various places and stated that if the police accompany them, they will produce the ornaments being subject matter of robbery. Accordingly, P.W.9 collected panchas and these accused led the police to the place where they had concealed the gold ornaments.

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This P.W.9 in the presence of panchas, seized the said gold ornaments under Ex.P5. Called the complainant to the police station, showed the said gold ornaments. Recorded her statement. He also seized the scooter, chappal etc. The said articles seized by P.W.9 are marked as M.O. Nos. 1 to 4.

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This P.W.9 produced accused Nos.1 and 2 before the Court and they were remanded to judicial custody. Thereafter, they were enlarged on bail.

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New Town Police after completion of the investigation filed the charge-sheet against accused persons for the offence under Section 384 read with Section 34 of IPC.

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The learned Civil Judge and Addl. JMFC, after filing of charge-sheet, took cognizance. Copies of the police papers were furnished to the accused persons as contemplated under Section 207 of Cr.P.C.

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After hearing both the sides, the learned Trial Court framed charge against accused persons for the offence punishable under Section 392 read with Section 34 of IPC and read over the same to the accused. They pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution in all examined nine witnesses from P.W.1 to P.W.9 and got marked

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Exs.P1 to P10, so also M.O. Nos.1 to 4. Closed prosecution evidence.

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After closure of the prosecution side evidence, accused Nos.1 and 2 were questioned under Section 313 of Cr.P.C. so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution. They denied their complicity in the crime and did not choose to lead any defence evidence on their behalf.

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Having heard the arguments from both the sides, the learned Trial Court found both the accused guilty of the offence under Section 392 read with Section 34 of IPC and sentenced them as aforesaid.

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Being aggrieved by the same, it is accused No.1 preferred Crl.A. No.11/2013 before the Fast track Court, Bhadravathi. The learned Presiding Officer of Fast Track Court, Bhadravathi, after securing the Trial Court records and hearing arguments, affirmed the Judgment of conviction and sentence passed by the Trial Court vide Judgment dated 06.08.2014. This is how now

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accused No.1 - Revision Petitioner is before this Court challenging the said Judgment of conviction and sentence passed by the Trial Court and confirmed by the First Appellate Court, on the following grounds:

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That the conviction and sentence passed by both the Courts are contrary to law and evidence on record and probabilities of the case. Both the Courts have not considered the facts and circumstances of the case in proper perspective and hence the Judgments so passed by both the Courts are illegal, capricious and opposed to the sound principles of law.

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A grave error has been committed by both the Courts in appreciating the evidence of interested testimony of P.W.1, P.W.2 and P.W.3. Both the Courts have committed error in appreciating the evidence of these witnesses as there is no corroborative evidence adduced by the prosecution. There is no proper analysis of the evidence. No identification parade was conducted so as to identify the accused persons. Recovery is not proved in accordance with law. Cross-examination of P.Ws. 1 to 3 is not properly appreciated. Both the Court have failed to take

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note of hostility of P.W.4 and 5 and would have acquitted the revision petitioner - accused No.1. The evidence so recorded would have been discarded by both the Courts. As there is a serious error committed by both the Courts which has resulted in miscarriage of justice. Benefit of provisions of section 3 and 4 of the Probation of Offenders Act, 1958, would have been given to the accused. A harsh and disproportionate sentence is imposed against accused. Hence, amongst other grounds, it is prayed to allow this revision petition and acquit the revision petitioner - accused No.1.

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After filing this revision petition, revision petitioner was granted bail. Learned High Court Government Pleader took notice of this revision petition. Records of the Trial Court and First Appellate Court are secured.

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I have heard the arguments of learned Advocate for the revision petitioner and learned HCGP. Meticulously perused the records.

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It is submitted by the Advocate for the petitioner that both Trial Court and Appellate Court have committed grave error in appreciating the evidence being placed on record by the prosecution. It is submitted that, the very identification of the accused is disputed in this case. No proper procedure is being followed by the Investigating Agency in getting identification of the accused persons. It is a serious lacuna in the case of prosecution. It is further submitted that but even then, the learned Trial Court and the Appellate Court have misconstrued the facts brought on record and in view of the grounds so stated in the Revision Petition, he is entitled for acquittal.

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As against this submission, the learned HCGP supported the reasons being assigned by the Trial Court and First Appellate Court and also submits that findings thereon are the factual findings with sound reasons and he supported the reasons and findings of both the Courts. It is prayed to dismiss the Revision Petition.

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In the light of the submissions made by both the Advocates and the evidence placed on record, the following point arises for my consideration:

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" 1. Whether the learned Trial Court and the Appellate Court have committed any legal error in arriving at

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the conclusion of finding guilty of petitioner No.1?"

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To ascertain the same, we have to read both oral and documentary evidence produced, coupled with the position of law.

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In this case, as discussed by the Trial Court and Appellate Court, P.W.4 - Francis being pancha to Ex.P2 - spot panchanama, so also P.W.5 - Salman Raj have been turned hostile. So also P.W.6 - Yogesh pancha to Ex.P5 - seizure panchanama has been turned hostile. Therefore the learned Trial Court and the Appellate Court have held that the evidence of these three witnesses would not come to the rescue of the prosecution. When the said witnesses have turned hostile, as rightly submitted by the learned Advocate for the Revision

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Petitioner, no evidentiary value can be attached to the evidence of these witnesses.

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P.W.1 being the complainant and P.W.2 being her husband, in their respective examination-in-chief have spoken to before the Court on oath, that on 11.08.2010, after consulting the doctor at VISL Hospital at about 6.30 p.m., they were returning to their house on the pathway situated behind the Karimaremma Temple by the side of the said hospital. At that time, they noticed two persons standing with a scooter by parking the same on the road. P.W.2 was moving ahead and P.W.1 was following him. At that time, amongst said two persons, one person caught hold of neck of P.W.1 - Indramma, threatened her and gave a threat to her to remove her wedlock chain, otherwise, he will strangulate her. By saying so, he caught hold of her neck. P.W.1 scared and as she was put under threat, she removed the said golden wedlock and gave it to accused No.1. She shouted. When her husband chased, one person tried to assault him with stone. Another person tried to start the scooter, but he could not. Therefore, leaving the said

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scooter and chappal, they ran away with the golden wedlock. Before the Court on oath, P.W.1 identifies the persons as the persons who committed robbery of her golden wedlock. She identifies M.O. Nos.1 to 4 being the wedlock, chappal scooter. She further deposes that after two days, she was called by the Station and there she was shown with M.Os.1 to 4.

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Though this P.W.1 has been directed with severe and searching cross-examination, but she has withstood the test of cross-examination.

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Likewise, P.W.2 corroborates the evidence of P.W.1 in material particulars and he too identifies both accused as well as M.O. Nos.1 to 4. The other aspects in the cross-examination with regard to opening of the hospital, its working hours etc. have been brought on record. Though he too has been crossexamined at length, he also has withstood the test of crossexamination.

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P.W.7 being the police official, has stated that, he was deputed by his superior officer along with other police staff

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shown as C.W.10 to C.W.12 to trace the accused in Crime No.121/2010. Accordingly, on 16.08.2010, they were doing day patrolling duty and when they came near Masjid at Bhandarahalli, they noticed the two persons i.e. accused Nos.1 and 2 were standing in front of a shop. On seeing the police, they tried to run away. But, accused Nos.1 and 2 were chased and they were caught hold by P.W.7 and his staff and thereafter, they were produced before P.W.9.

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Though this P.W.7 has been cross-examined by the defence, but nothing worth is elicited in the cross-examination so as to disbelieve his version given in the examination-in chief.

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P.W.8 being SHO on 11.08.2010 received the complaint, registered the same, prepared the FIR and set the criminal law in motion. Except the denial in cross-examination, nothing is brought on record from the mouth of this P.W.8. Thus, immediately after the incident, a complaint was filed by the complainant. This fact is not denied by the defence.

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P.W.9 is the I.O. in this case. He states that this P.W.7 along with other police staff produced both the accused before him on 16.08.2010 and he arrested them. When he interrogated them, they gave voluntary statement admitting about the commission of offence and also stated that if the police accompany them, they will show about the concealment of the articles being the subject matter of robbery. Accordingly, he collected the panchas and went along with the accused persons to the place where accused No.1 took them. It is accused No.1 took the police to his house, produced the Bajaj Scooter two ear ornaments, one golden ring, golden wedlock and other articles. He prepared the panchanama regarding recovery of said M.O. Nos. 1 to 4 under Ex.P5.

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Though this P.W.9 has been thoroughly cross-examined, except the denial, nothing is elicited from the mouth of this witness. In all criminal cases, police officials are the supervisors of the investigation and panchas are the authors of the panchanama.

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P.W.3 Thippeswamy is pancha to Ex.P5. He deposes before the Court with regard to seizure of said M.Os. at the instance of accused No.1. He identifies them having been photographed as per Ex.P4. Though this P.W.3 has been directed with lengthy cross-examination, but he has withstood the test of crossexamination. When there is a lengthy cross-examination, some minor contradictions, omissions are bound to occur. Though it is pointed out by the learned Advocate for the Revision Petitioner that there are contradictions, omissions, etc. but they will not shake the very basic case of the prosecution. P.Ws.1 and 2 have clearly identified these accused persons who have committed the offence of robbery. The said offence has taken place at about 6.30 p.m. on 11.08.2020. At that time, as per the say of P.W.1 and P.W.2, still there was light. So they could identify these accused persons both at the scene of occurrence and as well as when they were examined before the Court. So when there is a clear identification of accused Nos.1 and 2 by these eye witnesses being the victims, the argument that there was no identification parade cannot be accepted. Therefore, there is no substance in the submission of learned counsel for the accused.

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In this case, the offence of robbery is attributed against accused persons. Robbery is a special and aggravated form of either theft or extortion and in every robbery, all the elements of either theft or extortion must be existent. In extortion - robbery, there must be a threatened injury. In this case, P.W.1 has categorically stated that accused No.1 gave a threat, caught hold of her neck and threatened her with dire consequences of life. So this conduct of accused No.1 attracts the ingredients of Section 392 of IPC.

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The complaint and FIR do disclose the description of the accused persons and they have been identified by P.W.1 and P.W.2 when they are examined on oath before the Court. More so, there is a recovery of these M.Os. at the instance of accused persons. When there is a recovery and possession of stolen property, then, the presumption is permitted under Section 114 Illustration A of the Indian Evidence Act, 1872. Therefore, if the gold ornaments which were found in possession of the accused and recovered from him as held by the Hon'ble Supreme Court of India in TULSIRAM KANU VS. STATE reported in AIR 1954

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SC 1 , a presumption of guilt may be permitted. No fixed time limit can be laid down to determine possession is recent or otherwise. Each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies accordingly "as the stolen article are/is not calculated to pass readily from hand to hand". In this case, immediately within few days of lodging a complaint, the said gold ornaments with other articles are recovered as per the disclosure statements made by the accused persons when they were apprehended by the police. The learned Trial Court was justified in holding that the disclosure statements of the accused persons and recoveries from them at their instance by itself was sufficient circumstance which clearly show that the accused persons had joined hands to commit the offence of robbery. Therefore, recent and unexplained possession of stolen properties will be taken to be presumptions under the provisions of Indian Evidence Act. The best evidence has been placed on record by the prosecution to connect the accused persons with

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the offence of robbery because there is no proper explanation or account for the possession of these articles by accused persons.

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Therefore, there are no valid and acceptable grounds mentioned in the Revision Petition so as to interfere into the concurrent findings of both the Courts, finding the accused persons guilty of the offence under Section 392 read with Section 34 of IPC.

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Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime for example where it leads to offences against women like the case on hand of committing robbery of gold ornaments worn by her which have great impact and serious repercussions on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing major sentences or taking two sympathetic views merely on account of lapse of time or considerations pursuant to the accused only in respect of such offences will be result-wise counter-productive in the long run and against social interest which need to be cared for and strengthened by the required string of deterrence inbuilt in the sentencing system. So to say, when such robbery is committed, deterrent punishment is called for.

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It is submitted that Revision Petitioner - accused No.1 is a young person and has to take care of his family. This case is of the year 2010. In view of passage of time for a period of more than a decade, some leniency is to be shown in imposing sentence as there are no circumstances to invoke the provisions of Probation of Offenders Act. Therefore, to some extent, the sentence of imprisonment so imposed is to be modified and Revision Petitioner - accused No.1 if sentenced to undergo R.I. for one year, it would meet the ends of justice. So far as other sentence so imposed is concerned, it is to be maintained.

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It is held by the Hon'ble Supreme Court of India in a Judgment reported in (2008) 14 SCC 457 in SOUTHERN SALES AND SERVICES AND OTHERS VS. SAUERMILCH DESIGN AND HANDLES GmbH, it is well established principle of law that, the Revisional Court will not interfere even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error.

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It is well settled that in exercise of revisional jurisdiction under Section 397 of code of Criminal procedure, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and reinterpret the evidence on record. That means, interference by the High Court in exercise of revisional jurisdiction is limited to the exceptional cases, viz., (i) When it is found that order under revision suffers from glaring illegality or has caused miscarriage of justice, (2) When it is found that Trial Court has no jurisdiction to try the case. (3) When Trial Court has illegally shut out the evidence which otherwise ought to have been considered and (4) Where material evidence which clinches the issue has been overlooked.

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It is held by the Hon'ble Supreme Court in STATE OF GUJARAT VS AFROZ MOHAMMAD HASANFATTA, reported in 2019 CRL. L.J. 3366, 338(SC) that "while hearing revision under section 397 of Cr.P.C., the High court does not sit as an Appellate Court and will not re-appreciate the evidence unless the judgment of the trial court suffers from perversity".

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As the learned Trial Court and the Appellate Court have rightly appreciated the facts of the case and the findings of the Trial Court and the Appellate Court are based upon the facts and law, being a Revisional Court, this Court cannot sit as an Appellate Court and re-appreciate the evidence.

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In view of my foregoing discussions and the reasons stated thereon, the revision petition fails and is liable to be dismissed. Accordingly, I record my finding on point No.1 in the negative and resultantly pass the following:

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ORDER

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The Revision Petition filed by the Petitioner - Accused No.1 is dismissed.

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The Judgment of conviction and sentence passed by the Trial Court in C.C. No. 4157/2010 dated 01.01.2013 and the Appellate Court in Crl. A. No.11/2013 dated 06.08.2014 are hereby confirmed.

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However, there shall be modification of the sentence in the following terms:

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Accused No.1 shall undergo R.I. for one year. Set off is given under Section 428 of Cr.P.C. Accused No.1 shall surrender before the Trial Court forthwith to undergo the balance sentence. So far as other sentence is concerned, it is maintained.

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Intimate the Trial Court and the Appellate Court regarding modification of the sentence, forthwith.

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Send back the Trial Court and Appellate Court records.

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Sd/JUDGE

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sac*

Shekara @ Ravikumara v. State by Psi

Case brief

What is this about?

What did the court decide?

Shekara @ Ravikumara v. State by Psi

Case brief

What is this about?

What did the court decide?

What the court decided

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